A business may engage an employee or an independent contractor to perform similar tasks but there is an important distinction between the two. Employees are protected by Employment Standards legislation as well as common law (judge-made law) protections such as the right to reasonable notice of termination. An independent contractor is not. The amount of notice a court will deem appropriate is, on average, one month’s notice per year of service, although the amount is entirely dependent on the facts in the individual situation. There are further administrative obligations on employers to manage employees compared to independent contractors. Notably, businesses are not required to remit income tax on behalf of independent contractors.

Employment litigation is a specialized area of law. At Baker Law Firm we have an active practice on behalf of employees who have been terminated. This is also an area where we consider acting on alternative fee arrangements. If you have been terminated and were not paid notice or enough notice contact Baker Law Firm for a consultation. Upon review of your matter we may offer to provide our services on a contingency arrangement.

There is no way to offer complete certainty that a worker will be classified as an independent contractor by a judge, arbitrator, employment standards officer, or another decision-maker. However, a lawyer can assist with drafting a contractor agreement in a precise and technical manner to lower the risk that a decision-maker determines the worker is an “employee”. A non-exhaustive list of questions a decision-maker may consider is as follows: how is the worker described in the contract? Does the worker provide his or her own equipment and tools? Is the worker on a benefits plan? Can the worker hire others to assist? Does the worker have autonomy over their hours of work? And is the worker allowed to work for other companies during the engagement?

“Intern” is not a recognized category of worker under Alberta law and will be subject to Employment Standards, assuming the worker is not an independent contractor. A narrow exception applies to minimum wage entitlement for students informal work experience programs through their educational institutions. In the event an employer wishes to engage a person on a short-term basis as an intern, the employer can mitigate termination entitlement through fixed-term agreements or a contractually stipulated maximum notice entitlement. It is also important to note if an intern is under the age of 18, they are subject to additional restrictions, such as hours of work, under Employment Standards legislation.

As in other contractual relationships, a written employment agreement definitively sets out each party’s rights and obligations through the course of the working relationship. In this sense, it provides certainty, clarity, and protections to both the employer and employee. Drafting an employment agreement is not just a formality as an improperly drafted employment contract may be set aside. Where there is no employment contract, or an improperly drafted one, a court will decide what terms apply to the employment relationship.

The three most important pieces of legislation relating to employment law in Alberta is the Employment Standards Code, the Alberta Human Rights Act, and the Occupational Health and Safety Act. Alberta generally has a complaints-based system although businesses may be subject to random inspections to ensure conformity with the three pieces of legislation mentioned above. 1. Employment Standards The Employment Standards Code guarantees certain rights to employee such as a minimum length of termination notice, minimum wage, maximum hours of work, the requirement for overtime pay, and a minimum amount of vacation days. 2. Human Rights The Alberta Human Rights Act guarantees every employee’s right to be free from discrimination and harassment on protected grounds such as gender, race, and age. It is important to note that while the employer’s primary intention might not be discriminatory, its actions may still a discriminatory affect. For example, an employer may stipulate that all employees have to be clean-shaven. While preferences for facial hair is not, in itself, a protected ground, this policy may discriminate against individuals who have a religious reason for maintaining facial hair. 3. Occupational Health and Safety Alberta legislation obligates employers to ensure that its workers are free from harassment and violence at the work site.

An employee may be terminated with or without cause. Where an employee is terminated with cause, the employee is disentitled from a minimum length of notice as well as income support benefits such as EI. Perhaps unsurprisingly due to the seriousness of the consequences, decision-makers will rarely find that an employee’s conduct rises to a level to justify a with cause termination. An employer can terminate an employee without cause for any reason so long as it is not based on a protected ground in Human Rights or Employment Standards legislation. Care should be taken during the termination process to lower the risk of a damages award for the manner of the termination. Best practice is to arrange a private, in-person meeting with the employee to notify him or her of the termination. At this meeting, the employee should be given a brief, truthful explanation for the termination. The employee should be given an opportunity to collect his or her personal belongings and to return company property such as keys. Details about the employee’s termination should be kept in confidence and only discussed on a need-to-know basis.